is Marty Lederman, a prominent lawyer blogger at law professor Jack Balkin's website, discussing "The Marriage Cases"
from the California Supreme Court.
My initial reaction, after reading the decisions (majority, concurring and dissenting opinions), is how amusing it is to find how, once again, Republican appointees are the primary forces in promoting a legal conclusion that discrimination against homosexuals is as wrong as discrimination against African-Americans. Three of the four Justices are Republican appointees. And think about this: United States
Supreme Court Justice Anthony Kennedy, a known advocate of homosexual rights, is also a Republican appointee. Still, let's talk judicial philosophy with regard to this decision.
While I am very drawn to analogizing discrimination against homosexuals to discrimination against African-Americans, I am also concerned that a too strong acceptance of that logic undermines the ability of a society to draw lines that sometimes defy logical analogies. Courts used to recognize the need for caution when they would decline to hear a case that could be deemed a "political"
question. To decline to hear a claim because it presents a "political question" is not pretty, but the principle provides a stopgap for the Court to not become involved in questions that the populace needs to sort out. Think Bush v. Gore
, if you are pro-Democratic Party these days...
One may reasonably say that drawing societal lines based upon "sexual orientation" is different from doing so on the basis of the color of one's skin. The root word "sex" denotes a subject that makes many of us squeamish, if not crazy on ocassion. Trying to explain two adult women or two adult men holding hands to one's children is a lot more difficult or embarrassing for parents than explaining a black woman holding hands with a white man, to take perhaps a trivial example. But is such a concern about sex enough to overcome the logic of the analogy that discrimination against homosexuals is as wrong as the wrongful discrimination against African-Americans? I think the logic is personally compelling, but from the perspective of upholding a cautious judicial philosophy, the answer is probably that society ought to be able to draw the line that says "civil unions, yes, marriage, no" when it comes to homosexual rights in a society.
What I found interesting was how strongly the California Supreme Court's majority opinion depends upon this argument: The California Legislature, through the enactment of "domestic partnership" laws, has provided homosexual couples the same rights as heterosexual couples except for the use of the word "marriage." Therefore, because the word "marriage" is a technical term that means essentially the same thing as a "domestic partnership," the Legislature, Executive branch and the populace acting through referenda (such as California's Proposition 22) cannot justify prohibiting homosexuals from being "married" in the eyes of the State of California.
UCLA law professor, Eugene Volokh, who appears to support the decision from his libertarian legal philosophical position, nonetheless notes that, for many years, "moderate" advocates of "domestic partnerships" and earlier court decisions granting certain employment and other public protections to homosexuals were saying there is no slippery slope
to same sex marriage. Indeed, the California Supreme Court admits the US Supreme Court, in Lawrence v. Texas
(2003) 539 US 558, had explicitly stated its decision, which held that sodomy laws were an unconstitutional invasion of privacy, did not lead to any constitutional demand that a State must accept same sex marraiges (See: Footnote 10 of "The Marriage Cases", page 16). What the California Supreme Court has done, under Volokh's analysis, is undermine the ability of reformers to undertake piecemeal reforms and changes in a society--reforms which have themselves done much to change public attitudes on behalf of homosexuals and even same sex marriage.
The majority's opinion, in Section III(A), responds to my concern about the integrity of having a cautious judicial philosophy where they note the sex neutral language of various marriage statutes throughout California's history. Yet, the majority opinion acknowledges that no authority exists to support any conclusion that the drafters of those statutes ever thought it would mean homosexuals could apply for a State marriage license.
The majority opinion, in footnote 42, also cites Cass Sunstein's law review article
on the right to marry, and Sunstein's view that the State could withdraw any state sanction of marriage without offending constitutional norms (However, I think the Court majority misread Sunstein's argument as meaning that the State could outlaw marriage, which would mean that the State could somehow prohibit people from becoming married in a private religious or non-religious ceremony--which would
contravene fundamental rights to privacy and religious freedom). The Court, however, just glosses over Sunstein's points and continues to justify its decision on the basis that "marriage" is just a technical term devoid of religious meaning, and therefore culturally fungible.
But what these Republican elitist justices don't understand (otherwise they might be populists) is that the word "marriage" is not simply a technical word summarizing legal and tax rights. The word has a religious overtone, not merely a secular meaning. In earlier times, the State decided to become a partner with religion concerning "marriage," and perhaps, in light of other changes in the law regarding the relation of religion and government, the State ought not to be involved to the extent it entangles itself with the religious aspects of "marriage." Maybe the State should stop using the word "marriage" altogether and state there are only "domestic partnerships" for those seeking a government sanction regarding a union of two people who profess their love and commitment to each other.
The Republican elitist judicial appointees don't really think there is a reason for judicial humility before pushing a populace which is still working through the societal consequences of an implied finding that homosexuality is not only "virtually normal,"
but normal overall. That is something that makes me feel dreadful for even saying, as I would hate to be placed on the same "side" as those who are anti-homosexual. However, there is something to be said on behalf of a more cautious judicial philosophy and judges not getting too far out in front of society when society is sorting through something that goes to the heart of sexual relations.
(And of course, politically, it would be a horrible consequence if the Republican elite Justices of the California Supreme Court helped galvanize support for John McCain
Oh, and let this be a lesson for those who think the words "liberal" and "conservative," without qualifiers, are helpful to understand what someone's "philosophy" is across the political board.